Lord Anderson of Ipswich: My Lords, I will speak to Motions B1 and E1 in my name in this group. Having heard the Minister, I can be brief on Motion B1, which concerns a sometimes-neglected part of the Bill. Clause 3 is headed “Revocation of retained EU rights, powers, liabilities etc”. That clause is unaffected by the Government’s concession on the sunset and continues to provide for all directly affected provisions of EU law—whether they are found in the treaty, in directives, or in international agreements—to be revoked at the end of the year. My concern in tabling this amendment has been to know precisely what is being revoked and what will be proposed by way of replacement.
To that end, Motion B1, which builds on the helpful amendment originally proposed by the noble Baroness, Lady Noakes, seeks a guarantee that the directly affected provisions will be fully included in dashboard updates, as they have not been to date, and that the Government will give us clear warning in advance of those which they intend to carry over into our law and those which they may have decided not to carry over.
Unpicking provisions so deeply embedded in our law will not be a simple business. I declare an interest as a lawyer who sometimes needs to advise in this area. Such a commitment will be helpful to anyone who needs to understand what our law provides and how it is intended to be changed. I am grateful to the Minister and the Bill team for their constructive engagement on this issue, and for the clear commitments that he has just offered. In the circumstances, I am confident that I do not need to trouble the House with a Division on this issue.
Motion E1 is of a constitutional nature and concerns what, to some of us, has always been the most troubling feature of the Bill. It is nothing to do with the dashboard, direct effect or even the end-of-year sunset. It is rather the delegated superpower, headed “Powers to revoke or replace”, which currently appears as Clause 14. I remind the House of its most remarkable feature, subsection (3), which states:
“A relevant national authority may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.
That power will last until June 2026, which even we in the ivory tower of these Benches understand is some time after the next general election. It allows the Government to make regulations that Parliament cannot  amend or, in practice, block, even when those regulations have quite different objectives from the laws that they replace, as the Bill makes clear.
I say “laws” because the measures whose replacement is authorised by this clause are no ordinary regulations concerned only with matters of detail. They include major instruments of policy, often arrived at by codecision between the Parliament and Council of the European Union—the equivalent in our system of primary legislation. They take the form of regulations only because of Section 2(2) of the European Communities Act, which was itself a prime target of Brexit, ironically, because it stripped sovereignty from our Parliament. The seriousness of what is proposed—permission to amend by statutory instrument numerous laws, in many fields, with the quality of primary legislation—is no doubt why, today, organisations from the RSPB to the TUC and the Law Society have come out in favour of this amendment.
The amendment contains an exceptional power, as the Minister said, but it is designed for exceptional circumstances. A Commons sifting committee would have the power to identify proposed regulations that are particularly deserving of parliamentary attention—perhaps because they are so substantially different from what went before, or because consultation or an impact assessment is lacking. Both Houses of Parliament could then agree on amendments—not an unprecedented power but one modelled on Section 27 of the Civil Contingencies Act 2004. This power would not be a precedent for the routine amendment of statutory instruments, any more than the Civil Contingencies Act has proved to be. Both these laws are in the same wholly exceptional category because both confer the power to make regulations on subjects that would normally be appropriate only for primary legislation—emergency powers in one case, and the unique circumstances of our departure from the EU in the other.
The precursor to this amendment, tabled by the noble and learned Lord, Lord Hope of Craighead, and signed by me and the noble Lords, Lord McLoughlin and Lord Hamilton of Epsom, was carried by a majority of 64. It did not meet with favour in the Commons, although there were some interesting speeches from the Conservative Benches there. We have listened and come up with something more modest. Its scope is limited to the one clause I have identified—not three clauses, as previously—and the sifting committee will be of the Commons only, not a Joint Committee. There is ample reason, I suggest, to ask the Commons to think again about what we meant when we took back control and whether the Commons is really willing to write itself out of the script, as the Bill would allow.
I only wish that this speech could have been made by the noble and learned Lord, Lord Judge. It would have been half as long, twice as amusing and four times as persuasive. So I end by recalling that, at the last Queen’s Speech, the noble and learned Lord asked, on his favourite subject of delegated powers,
“what is the point of us being here if, when we identify a serious constitutional problem, we never do anything about it except talk?”—[Official Report, 12/5/22; col. 130.]
It is time to act, and I propose to do so by testing the opinion of the House.